Phillips v. Crane Co. et al

Filing 49

ORDER by Judge Claudia Wilken GRANTING 27 MOTION TO REMAND.( terminating 48 Stipulation) (ndr, COURT STAFF) (Filed on 2/26/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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DAVID PHILLIPS,
Plaintiff,

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No. C 13-5655 CW
ORDER GRANTING
MOTION TO REMAND
(Re: Docket No.
27)

v.

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ASBESTOS CORPORATION LIMITED, et
al.,

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Defendants.

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________________________________/

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United States District Court
For the Northern District of California

Plaintiff David Phillips moves to remand this case back to
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San Francisco superior court.

Defendant Crane Co. opposes.

The

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Court finds this motion suitable for disposition without oral
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argument pursuant to Civil Local Rule 7-1(b).

Having considered

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the papers submitted by the parties, the Court GRANTS Phillips’
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motion to remand.
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FACTUAL BACKGROUND
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On December 20, 2011, Phillips filed suit in San Francisco
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superior court against Crane and other defendants, asserting
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negligence and other state law claims for causing him asbestos20
related injuries.

Specifically, Phillips worked at several

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locations containing asbestos, including the Mare Island Naval
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Shipyard, and now suffers from asbestos-related pleural disease
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and asbestosis, serious lung diseases that are associated with the
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inhalation of asbestos fibers.

In his complaint, Phillips

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expressly waived claims against Crane relating to his exposure to
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asbestos at military and federal government jobsites, or from U.S.
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military vessels, aircraft, or equipment.
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Complaint ¶ 6.

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On December 6, 2013, Crane removed this action to federal

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court.

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Francisco superior court.

Phillips now moves to remand the suit back to San

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DISCUSSION
Crane argues that it properly removed this action under the

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federal officer removal statute, which provides that an action may

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be removed by “any officer of the United States or any agency

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thereof, or person acting under him, for any act under color of

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such office.”

28 U.S.C. § 1442(a)(1).

Suits against federal

United States District Court
For the Northern District of California

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officers are exceptional in that they may be removed to federal

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court despite the nonfederal nature of the complaint.

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County v. Acker, 527 U.S. 423, 431 (1999).

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§ 1441 is strictly construed, with any doubt resolved in favor of

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remand, the removal rights of § 1442 are broader than those

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provided by § 1441 because it is important to the federal

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government to protect its officers.

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F.2d 564, 566 (9th Cir. 1992); Durham v. Lockheed Martin Corp.,

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445 F.3d 1247, 1252 (9th Cir. 2006).

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that there is a “clear command from both Congress and the Supreme

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Court that when federal officers and their agents are seeking a

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federal forum, we are to interpret section 1442 broadly in favor

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of removal.”

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Manypenny, 451 U.S. 232, 242 (1981)).

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Jefferson

Although removal under

See Gaus v. Miles, Inc., 980

The Ninth Circuit instructs

Durham, 445 F.3d at 1252 (quoting Arizona v.

Thus, the fact that Phillips’ complaint expressly disavows

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any federal claims is not determinative.

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proper under the federal officer removal statute if the removing

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party: (1) demonstrates that it acted under the direction of a

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federal officer; (2) raises a colorable federal defense to the
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Rather, removal is

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plaintiff's claims; and (3) demonstrates a causal nexus between

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the plaintiff's claims and the defendant's acts performed under

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color of federal office.

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25, 134-35 (1989); Fung v. Abex Corp., 816 F. Supp. 569, 571-72

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(N.D. Cal. 1992).

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Mesa v. California, 489 U.S. 121, 124-

Here, Crane claims that the federal defense of military

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contractor immunity shields it from liability.

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provides, “Liability for design defects in military equipment

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cannot be imposed, pursuant to state law, when (1) the United

This doctrine

United States District Court
For the Northern District of California

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States approved reasonably precise specifications; (2) the

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equipment conformed to those specifications; and (3) the supplier

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warned the United States about the dangers in the use of the

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equipment that were known to the supplier but not to the United

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States.”

Boyle v. United Technologies Corp., 487 U.S. 500, 512

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(1988).

The justification for this defense is that liability for

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independent contractors performing work for the federal government

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constitutes a uniquely federal concern.

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Id. at 505.

In the present case, however, Phillips has expressly

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disclaimed and waived any claim arising out of or related to any

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asbestos exposure aboard federal jobsites and navy vessels.

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removes any claims to which military contractor immunity might act

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as a defense.

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this waiver; this same waiver language was found to justify remand

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in many cases in this district with very similar facts.1

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This

The Court sees no reason not to hold Phillips to

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The

See, e.g., Pratt v. Asbestos Corp., Ltd., 2011 WL 4433724
(N.D. Cal.); Dobrocke v. Allis-Chalmers Corp. Product Liability
Trust, 2009 WL 1464153 (N.D. Cal.); Madden v. A.H. Voss Co., 2009
WL 341377 (N.D. Cal.); Westbrook v. Asbestos Defendants, 2001 WL
902642 (N.D. Cal.).
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waiver justifies remand.

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course, and is allowed to do so by the state court despite his

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express waiver, Crane can remove once again.2

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If Phillips later attempts to reverse

IT IS SO ORDERED.
Dated: 2/26/2014

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CLAUDIA WILKEN
United States District Judge

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United States District Court
For the Northern District of California

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See 28 U.S.C. § 1446(b)(3) (“if the case stated by the
initial pleading is not removable, a notice of removal may be
filed within thirty days after receipt by the defendant . . . of a
copy of an amended pleading, motion, order or other paper from
which it may first be ascertained that the case is one which is or
has become removable.”).
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